BEFORE THE DAKSHINA KANNADA DISTRICT CONSUMER DISPUTES REDRESSAL FORUM AT MANGALORE

                                                                    Dated this the 31^st July 2010

COMPLAINT NO.72/2010

(Admitted on 26.02.2010)

          PRESENT:    1. Smt. Asha Shetty, President                                                                                                                                                                                                                                                                                                    2.Smt.Lavanya M. Rai, Member

BETWEEN:

Miss.Sudha N. Rao,

Wo. P.Narayana Rao,

Aged about 54 years,

Guru Nilaya, Adkar,

Sullia Taluk,

Dakshina Kannada.                           …….. COMPLAINANT

(Advocate for the Complainant: Sri.Sanjay D)

          VERSUS

Maha Rashtra Apex Corporation Limited,

Syndicate House,

Manipal  576 119,

Represented by Chairman,

Sri.Ramesh Pai.                                  ……. OPPOSITE PARTY

(Advocate for the Opposite Party: Sri.Shashiraj Rao, Kavoor)

                                      ***************

ORDER DELIVERED BY PRESIDENT SMT. ASHA SHETTY:

1.       The facts of the complaint in brief are as follows:

This complaint is filed under Section 12 of the Consumer Protection Act alleging deficiency in service against the Opposite Party claiming certain reliefs. 

The Complainant submits that, the Opposite Party has been running a financial institution having its head office at Manipal and had a branch office at Sullia.  The Complainant invested the money in debentures at Sullia Branch as under:-

          It is stated that, the Opposite Party has applied for a scheme in High Court of Karnataka as per Company Petition No.37/2003.  After hearing the objection, the High Court allowed the scheme as per order dated 08.10.2004.  As per the scheme, the bond holders get interest till 31.03.2002 and the entire repayment will be complete in five years starting from 15.12.2004.  As per the scheme, the Opposite Party should repay the entire amount as under:-

The Complainant submits that, the Opposite Party has not paid the entire bond amount, hence it is stated that, the service rendered by the Opposite Party amounts to deficiency and unfair trade practice.  Therefore, the above complaint is filed by the Complainant before this Forum under Section 12 of the Consumer Protection Act 1986 (herein after referred to as ‘the Act’) seeking direction from this Forum to the Opposite Party to pay Rs.10,923/- with interest at 9% p.a. from 01.05.2003 till payment and also claimed Rs.15,000/- as compensation and costs of the proceedings.

2.       Version notice served to the Opposite Party by RPAD. Opposite Party appeared through their counsel filed version and contended that there is no deficiency and stated that the Complainant had deposited Rs.5,000/- vide receipt No.003890.  It is submitted that, in the year 2002 the Company had reached a position wherein it could not meet the redemption pressure from creditors of the company due to non-recovery of debts.  Thereafter, the Opposite Party had moved the High Court of Karnataka in Company Petition No.1108/2002 with a scheme of arrangement with creditors of the company.  Later a revised scheme was filed in CP No.37/2003 where the Company had proposed to pay the creditors in 5 year installments i.e., 1^st year 15%, 2^nd year 20%, 3^rd year 25%, 4^th year 20% and 5^th year 20% of the principal amount from the effective date.

The Opposite Party submits that, as per the High Court order the Opposite Party had to pay all the depositors and bond holders having principal amount upto Rs.5,000/- in one installments with interest upto 31.03.2002 within six months on surrender of deposit/bond certificates.  It is stated that, the Opposite Party in the above case has paid a sum of Rs.9,916/- (principal amount plus interest upto 31.03.002 vide cheque bearing No.144276 dated 26.10.2005 and the same has been realized by the Complainant on 07.11.2005.  Therefore the Complainant is not at all justified in stating that the Opposite Party has not paid the amount to her and prayed for dismissal of the complaint.

3.       In view of the above said facts, the points now that arise for our consideration in this case are as under:

1. Whether the Complainant proves that the Opposite Party has committed deficiency in service?

2. If so, whether the Complainant is entitled for the reliefs claimed?

3. What order?

4.         In support of the complaint, Mrs.Sudha N.Rao (CW1) filed affidavit reiterating what has been stated in the complaint and answered the interrogatories served on her.   Ex C1 to C5 were marked for the Complainant as listed in the annexure.   One C.P.Dinesh (RW1), Authorized Officer of the Opposite Party filed counter affidavit and answered the interrogatories served on him.  Opposite Party produced two (2) documents as listed in the annexure.  Opposite Party filed notes of arguments.

          We have considered the materials that was placed before the Hon'ble Forum and answer the points are as follows:                       Point No.(i): Affirmative.

                       Point No.(ii) & (iii): As per the final order.   

Reasons

5.  Point No. (i) to (iii):

In the given case, it is admitted that the Complainant deposited Rs.5,000/- vide receipt No.003890 on 01.06.1998.  The Opposite Party acknowledged the above said amount and issued a Debenture Certificate as per Ex C1 to the Complainant agreeing to pay interest at 16% p.a. for the period of 59 months and the redemption value agreed to be paid a sum of Rs.10,923/-  on 01.05.2003.  It is also admitted before this Forum that, the Opposite Party Company has applied for scheme in Company Petition No.37/2003 on the file of the Hon’ble High Court of Karnataka, the said scheme was allowed as per order dated 08.10.2004, the Opposite Party directed to repay within 6 months 15% with 100% interest accrued upto 31.03.2002 and thereafter between 7 months to 18 months directed to pay 20%, 19^th month to 30^th month 25%, 31^st month to 42^nd month 20%, 43^rd month to 54^th month 20% plus accrued interest till 31.03.2002.

Now the point in dispute before this Forum is that, the Opposite Party has not paid the amount till this date, hence came up with this complaint.

The Opposite Party on the contrary contended that, in the above case Opposite Party has paid entire amount due to the Complainant along with interest upto 31.03.2002 i.e., Rs.9,916/- vide cheque bearing No.144276 dated 26.10.2005 and the same has been realized by the Complainant on 07.11.2005. 

The Complainant and the Opposite Party filed their evidence by way of affidavit and produced Ex C1 to C5 for the Complainant and Opposite Party produced two documents in later stage.

From the entire record placed before this Forum by the respective parties in the shape of documents and proof and affidavits, it is proved on record that, the Complainant deposited the above stated amount under debenture certificate i.e., Ex C1.  It is also could be seen from the affidavit filed by the Complainant that, he has not received any amount from the Opposite Party till this date.

 On the contrary, the Opposite Party though taken a defence that Rs.9,916/- paid under Ex C1 but not produced any documentary proof in order to show that the above said amount paid under the Ex C1 in favour of the Complainant has been realized and the same has been withdrawn by the Complainant.  No doubt, the Opposite Party produced the statement of current account showing that they have withdrawn the cheque in the name one Sudha N. Rao but there is no proof that the same has been sent to the Complainant and it has been realized by her.  On the other hand, the Complainant produced a statement of account for the period of 1.2.2003 to 16.7.2010, on careful scrutiny of the above statement, there is no realization of cheque as allegedly issued by the Opposite Party.  Except the oral assertion, nothing has been placed on record to substantiate the same.  In the absence of any credible/material evidence, we are declined to consider the defence taken by the Opposite Party.  It is the bounden duty of the Opposite Party to produce the proof before this Forum to show that the amount stated by them has been paid to the Complainant under the Ex C1 and the same has been withdrawn by her.  No evidence is produced, hence we hold that the defence set up by the Opposite Party is not correct and per se false. 

Under that circumstances, we consider that the amount has been already matured in the way back on 01.05.2003.  Apart from that, the Hon’ble High Court of Karnataka has fixed the scheme and directed to pay the amount as per the order dated 08.10.2004.  We also observed that the order passed by this Forum will be subject to the order passed by the Hon’ble High Court.  We noticed that, the Opposite Party not complied the order passed by the Hon’ble High Court of Karnataka till this date amounts to deficiency. 

In view of the above discussion, we hold that the Opposite Party is hereby directed to pay to the Complainant the entire amount i.e., Rs.10,923/- under Ex C1 along with interest at 9% p.a. from 01.05.2003 till payment.  Further Rs.1,000/- awarded as cost of the litigation expenses.  Payment shall be made within 30 days from the date of this order.                                                                                              

6.       In the result, we pass the following:          

ORDER

The complaint is allowed.  Opposite Party is hereby directed to pay to the Complainant the entire amount i.e., Rs.10,923/- (Rupees ten thousand nine hundred and twenty three only) under Ex C1 along with interest at 9% p.a. from 01.05.2003 till payment.  Further Rs.1,000/- (Rupees one thousand only) awarded as cost of litigation expenses.  Payment shall be made within 30 days from the date of this order.                                     

The copy of this order as per the statutory requirements be forwarded to the parties free of charge and therefore the file be consigned to record.

(Page No.1 to 8 dictated to the Stenographer typed by her, revised and pronounced in the open court on this the 31^st day of July 2010.)

          PRESIDENT                                     MEMBER

ANNEXURE

Witnesses examined on behalf of the Complainant:

CW1 – Miss. Sudha N. Rao – Complainant.

Documents produced on behalf of the Complainant:

Ex C1 – 01.06.1998: Debenture Certificate No.003890.

Ex C2 – 27.05.2005: Pamphlet issued by the Opposite Party.

Ex C3 – 24.08.2009: Lawyer’s notice sent to the Opposite Party on behalf of the Complainant.

Ex C4 –                  : Postal acknowledgement.

Ex C5 – 17.07.2010: Account extract of joint account of the Complainant.

Witnesses examined on behalf of the Opposite Party:

RW1 – C.P.Dinesh, Authorized Officer of the Opposite Party.

Documents produced on behalf of the Opposite Party:   

Doc. No.1 – Copy of the bank statement.

Doc. No.2 – Copy of the Company Petition No.37/2003.

Dated:31.07.2010                            PRESIDENT